UNITED STATES OF AMERICA
DEPARTMENT OF LABOR
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MINE SAFETY AND HEALTH ADMINISTRATION
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DIESEL PARTICULATE MATTER EXPOSURE
OF UNDERGROUND METAL AND NONMETAL MINES
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PUBLIC HEARING
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TUESDAY
OCTOBER 7, 2003
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ARLINGTON, VIRGINIA
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The above-entitled matter came on for hearing, pursuant to notice, at 9:00 a.m. in Conference Room J, 25tH Floor, 1100 Wilson Boulevard, Arlington, Virginia, Becki Smith, presiding.
Panel Members:
Becki Smith
Doris Cash
Deborah Green
John Kogut
Jim Petrie
George Saseen
I-N-D-E-X
Welcome and Opening Remarks, Becki Smith 3
Overview of Proposed Rules, Jim Petrie 9
Speakers:
Jim Sharpe, Vice President of Safety
Health Services for the National Stone,
Sand and Gravel Association 15
Mike Wright, Director, Health Safety
and Environment Department, United
Steelworkers of America 35
Peter Galvin 53
Bruce Watzman, National Mining
Association 62
Adjourn 77
P-R-O-C-E-E-D-I-N-G-S
9:03 a.m.
CHAIRMAN SMITH: Good morning. My name is Becki Smith. I am the Deputy Director of MSHA's Office Standards, Regulations and Variances. And on behalf of Dave Lauriski, I'd like to welcome all of you here today to this public hearing.
The purpose of this hearing is to obtain input from the public on a proposed rule that was published in the Federal Register on August 14, 2003, addressing diesel particulate matter exposure of underground metal and non-metal miners.
I'd like to introduce those on the panel with me here today. To my far right is Jim Petrie. Jim is Metals District Manager from the North Central District and Chairman of the Diesel Particulate Committee.
George Saseen is from MSHA's Technical Support Organization. And on my left, Deborah Green is from the Solicitor's Office for Mine Safety and Health. Doris Cash is from the Metal and Non-Metal Organization of MSHA. And John Kogut is from MSHA's Program Evaluation Information Resource Organization.
There are other MSHA representatives in the audience who may ask questions of the panel members as they give their testimony.
This hearing is being held in accordance with Section 101 of the Federal Mine Safety and Health Act of 1977. As is the practice of this Agency, formal rules of evidence will not apply. Therefore, cross examination of hearing panel members will not be allowed, but the panel may explain and clarify provisions of the proposed rule.
Also, as moderator of this public hearing, I reserve the right to limit the amount each speaker is given, as well as the questions of the hearing panel.
Those of you who have notified MSHA in advance of your intent to speak will be allowed to make your presentations first. I will call speakers in the order that requests were made.
Following these presentations, others who request an opportunity to speak will be allowed to do so.
We invite all interested parties to present their views at this hearing and if you wish to speak, please be sure to sign in at the registration table.
We will remain in session today until everyone who desires to speak has an opportunity to do so. Also, if you are signing up to speak today, we would like for you to sign in the general sign in sheet, so we have an accurate record of attendance at today's hearing.
We will accept written comments and data at this hearing from any interested party, including those who are not speaking at the hearing.
When I call you to speak, please come to the speaker's table and begin your presentation by identifying yourself and your affiliation for the record. If you have a prepared statement or any supporting documents for the record, please leave a copy with us today.
You can give written comments on this hearing to us today or you can send them to MSHA's Office of Standards electronically, by facsimile, by regular mail or hand carry using the address information listed in the hearing notice.
In addition to this hearing today, there was a hearing in Salt Lake City on September 16th; in St. Louis on September 18th; and in Pittsburgh on September 23rd.
The post-hearing comment period will end on October 14 and submissions must be received on or before that date.
A verbatim transcript of this hearing will be made as part of the record and it will be posted MSHA's website. If you would like a copy sooner, you can make your own arrangements with the court reporter. The company information is available at the registration table.
We will have a lunch break at noon and short breaks in the morning and afternoon as necessary.
Before we begin, I would like to give you some background on the proposed rule we are addressing today.
On January 19, 2001, MSHA published the final rule addressing the health hazards to underground metal and non-metal miners from exposure to diesel particulate matter. The rule establishes new health standards for underground metal and non-metal miners by requiring use of approved equipment and a low sulphur fuel and by setting an interim and final concentration limit for diesel particulate matter in the underground mining environment.
MSHA established staggered effective dates for enforcement of the concentration limits. The interim concentration limit of 400 micrograms per cubic meter of air of total carbon was to become effective on July 20, 2002. The final concentration limit of 160 micrograms per cubic meter of air of total carbon was scheduled to become effective January 20, 2006.
On January 29, 2001, several mining trade associations and individual mine operators challenged the final rule and the United Steelworkers of America intervened in the case which is now pending in the District of Columbia Circuit.
On July 5, 2001, as a result of the Federal Phase 1 settlement negotiations, MSHA published two notices in the Federal Register. One delayed the effective date of Section 57.5066(b) related to tagging requirements in the maintenance standard. The second notice proposed a rule to make limited revisions to Section 57.56(b) and added a new paragraph to Section 57.5067(b) regarding the definition of introduced in the engine standard. The final rule was published on February 27, 2002.
Phase 2 of the settlement agreement was reached in June 2002 and under the agreement, the interim concentration limit became effective on July 20, 2002 without further legal challenge. Mine operators had one year to develop and implement good faith compliance strategies to meet the interim concentration limit.
MSHA agreed to conduct compliance assistance during the one-year period and MSHA also agreed to
re-enter rulemaking on several other disputed provisions of the 2001 rule.
The legal challenge to the rule has been stayed pending completion of the additional rulemakings.
On September 25, 2002, MSHA published an advance notice of proposed rulemaking. MSHA noted in the advance notice that the scope of the rulemaking is limited to the terms of the settlement agreement and addresses MSHA's intent to re-propose the interim and final concentration limits.
On July 20, 2003, MSHA began enforcing the interim final limit of 400 micrograms. The Agency's enforcement policy is also based on the terms of the settlement agreement and was discussed with the litigants and stakeholders on July 17, 2003.
The enforcement policy is written into a compliance guide and both the compliance guide and the program policy letter are posed on MSHA's website on the sole source page for diesel particulate matter.
On August 14, 2003, MSHA published its proposed rule which would accomplish four things. Number one, revise the interim concentration limit measured by total carbon to a comparable permissible exposure limit measured by elemental carbon which renders a more accurate diesel particulate matter exposure measurement.
Number two, increase flexibility of compliance by requiring MSHA's long-standing hierarchy of controls of metal and non-metal mines, but prohibit rotation of miners for compliance.
Number three, allow MSHA to consider economic, as well as technological feasibility, in determining if operators qualify for an extension of time in which to meet the diesel particulate matter limits.
And four, simplify requirements for a diesel particulate matter control plan.
What I'd like to do now is ask Jim Petrie, Chairman of the Diesel Particulate Committee to present an overview of the proposed rules, after which I will begin to call speakers.
Jim?
MR. PETRIE: Thanks, Becki. If I could dim the lights here?
(Pause.)
The presentation I have is very short, only about 10 slides. And it compares the provisions in the existing rule with what we're proposing.
My glasses. The provisions in the existing rule that I'll be addressing are the interim limit, the special extension which is the extension of time requirements, the exceptions to the diesel particulate limits for performing maintenance, inspection and repair; the prohibition on respiratory protection and the prohibition on administrative controls; and lastly, the control plan requirements.
If any of you have any questions as I go through this, just speak up and ask them and I'll try to address them.
Under the interim limit, the existing rule is based on 400 micrograms per cubic meter. We're proposing to reduce that to 308 micrograms per cubic meter which is 400 divided by 1.3. The 1.3 was arrived at through the settlement agreement.
The total carbon is the surrogate in the existing rule and in the proposed rule, we will change that to elemental carbon.
Under the existing rule to concentration limit, we're proposing to change that to a personal exposure limit or PEL. I don't have it on here, but would also use an air factor of 1.12 time the 308 to determine if there was a sitable over-exposure.
The proposed rule does not address the final limit. MSHA believes it needs more time to consider both the economic and technical feasibility of controls and wanted to take separate rulemaking to address the final limit.
The extension of time requirements under the existing rule, they would apply only to the final limit. Under the proposal it would apply both to the interim limit as well as the final limit.
Under the existing rule, we would only consider technological constraints, but under the proposal we would consider both economic and technological constraints.
The existing rule would limit the extension of time to one per mine of not more than two years or to one extension of not more than years. Under the proposal, there would be no limit on the number of extensions that would have to be renewed every year.
I wanted to talk a little bit about the hierarchy of control requirements. Under the existing rule you have to use engineering or work practice controls. There is no allowance for rotation of miners. You would have to obtain approval to use personal protective equipment for inspection, maintenance and repair activities. And personal protective equipment, if used, would have to meet the requirements of MSHA's existing metal/non-metal air quality standards which are 57.5006. Those standards incorporate ANSI's 88.2 1969 by reference.
Under the proposal, the requirements are somewhat similar. You would also have to use feasible administrative and engineering controls, rotation of miners would be prohibited as in the existing rule. You would be required to use personal protective equipment or respirators, if controls were found and feasible. And again, the respiratory protection requirements would be tied to those requirements that are in MSHA's existing air quality standards with the exception that the types of filters to be used for diesel particulate would be specified.
In regards to rotation of miners, the existing rule prohibits it. It defines though administrative controls uniquely as rotation of miners. Any other type of work practice controls would be allowed under the existing rule.
Under the proposal, it also limits rotation of miners, but allows other administrative controls, anything except rotation of miners, so the two requirements in the existing and the proposal really are similar. It's just a difference in wording.
Regarding respiratory protection requirements, the proposal does not include provisions on medical evaluation of respirator wearers or transfer of miners, but we do solicit comments in the proposal on those provisions.
Regarding the control plan requirements under the existing rule they are triggered by a single violation. Under the proposal it would be triggered if a mine was not in compliance within 90 days of receiving a citation. The existing rule requires verification monitoring whereas the proposal does not have any specific verification monitoring requirements. The existing rule would require that the control plan remain in effect for three years from the date of the violation, whereas the proposal would require that it be in effect for one year after the citation is terminated.
And lastly, the proposal does contain other conforming changes such as where the existing rule talks about total carbon. We would make changes in the proposed rule to reference elemental carbon or where the existing rule talks about concentration limits, the proposal would change those to personal exposure limits. So there are a number of minor conforming changes that are in the proposal.
And lastly, we do have, as Becki mentioned, we do have a compliance guide and program policy letter posted on MSHA's website on the single source diesel particulate page.
Any questions? Yes?
MR. WRIGHT: Mike Wright from the Steelworkers. Jim, I just want to say again what I said in a previous hearing that with respect to the 1.3 multiplier, I think it's important to note that that wasn't just a bargained number in the settlement agreement. It actually resulted from real data that all of the parties saw and agreed with. If that data had subsequently become invalid, then we would be talking about a different multiplier here. So it's a data driven number, not a negotiated number.
MR. PETRIE: Thank you, Mike. Yes, Jim?
MR. SHARPE: What's the Agency's objection that we end rotation of employees to this standard?
MR. PETRIE: We believe that since diesel particulate is considered a carcinogen, that it's not appropriate to rotate workers, that it's exposing additional individuals to those contaminants.
Any other questions? Thank you.
CHAIRMAN SMITH: Thank you, Jim. We had a previous request for a speaker from MARG at this hearing. Do we have someone here representing MARG?
All right, then our first speaker will be Jim Sharpe.
Good morning.
MR. SHARPE: Good morning.
CHAIRMAN SMITH: Do you mind clipping on a lavaliere and spell your name.
MR. SHARPE: You'll probably be able to hear me without this, but I'll --
CHAIRMAN SMITH: Jim, if you'll spell your name and give your affiliation for the reporter.
MR. SHARPE: My name is Jim Sharpe. The last name is S-H-A-R-P-E, Vice President of Safety Health Services for the National Stone, Sand and Gravel Association.
Good morning. On behalf of NSSGA I would like to thank MSHA for arranging this public hearing in the D.C. Metropolitan area. It affords NSSGA the opportunity which has been foreclosed by the original hearing scheduled to present our views.
I see there are others besides myself on the schedule this morning who also intend to take advantage of this opportunity to speak.
NSSGA based near the nation's capital is the world's largest mining association by product volume, representing 800 member companies and approximately 120,000 working men and women in the aggregates or construction materials industry. During 2002, a total of about 2.73 billion metric tons of crushed stone, sand and gravel, valued at $14.6 billion were produced and sold in the United States.
Based on the number of metal/non-metal mines involved, MSHA's proposed DPM rule far and away is now having and will continue to have its greatest impact on underground stone mines which NSSGA represents.
Of the 196 underground dieselized metal and non-metal mines, 97 or nearly 50 percent, are stone mines. No other metal/non-metal commodity comes close to this number of mines. Of these 97 underground stone operations, 56 are considered small by MSHA's definition of a small mine. All are considered small by the definition used by the Small Business Administration.
NSSGA plans to submit detailed, written comments before the comment period closes in a week. Therefore, our purpose today will be to highlight issues with DPM rulemaking that we have particular concerns about.
But first, let me summarize NSSGA's position. We believe there is insufficient exposure response information to justify establishment of occupational exposure limits for DPM at this time.
Nevertheless, our industry is committed to trying to comply with the interim permissible exposure limit, the PEL.
We steadfastly oppose the final PEL, however, because of the dearth of exposure response data and because we believe the final PEL is neither technologically nor economically feasible.
We support rotation of workers as a viable administrative control option and oppose any attempt to impose further record keeping burdens on the industry already burdened in regulatory paper, some of it quite unnecessary. And if you don't know what I'm talking about, it's in part the beloved HazCom standard that you imposed on the industry a year ago.
The title of this section of my talk is called the January 2001 Rulemaking Was Arbitrary and Capricious. We're all sitting here today essentially because of the final DPM rule issued on January 19, 2001, the last day of the previous Administration. This rulemaking was arbitrary and capricious for several reasons. The health effects, risk characterization sections of this document were not independently peer-reviewed. For a regulation that imposed the economic burden on an industry that this one does, failure to submit this work product for validation by credible independent resources is inexcusable and must be rejected for that reason alone.
You are all aware that the Office of Management and Budget, OMB, has issued guidelines for federal agencies to follow that are designed to improve the quality of information, developed and disseminated by federal agencies, including MSHA. Those guidelines are currently in effect, although they post dated issuance of MSHA's January 2001 rulemaking, they are relevant in this rulemaking, nonetheless, because (1) they set a standard for information quality against which all rulemaking, present or past must be measured; and (2) MSHA specifically mentions in its preamble to the August 14, 2003 proposed rule that MSHA has incorporated into the record of this particular rulemaking the entire existing rulemaking record including the risk assessment to the January 19, 2001 standard and because MSHA says on that same page of the preamble that it requests comments on the final PEL on which the 2001 risk assessment is based.
We would expect MSHA to respond that OMB's data quality guidelines do not apply because OMB's recommendation of independent peer review only applies to influential studies. Influential studies are those that bear on a significant regulatory action defined in Section 3F1 of Executive Order 12866, among other things as having an annual effect on the economy of $100 million or more or adversely affecting in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety and so forth.
MSHA's economic analysis essentially concludes that the rule will not cost more than $100 million, nor will it have an adverse effect on a sector of the economy, productivity, competition or jobs. But as the industry pointed out in this technical and economic feasibility analysis in 2000, MSHA's figures are grossly underestimated. Besides, as we will see later, the economic feasibility analysis is predicated on what we believe is a flawed instrument, MSHA's estimator.
Further information on the weaknesses of MSHA's economic analysis will be provided before the comment period closes.
NSSGA would also point out that even to prior to issuance of the OMB guidelines, Congress gave all federal government agencies the standard to follow when disseminating information in the context of health risks. We're speaking of the principles applied by Congress to risk information pursuant to the Safe Water Drinking Act amendments of 1996. Those guidelines constitute Appendix 2 of the Department of Labor's own guidelines for ensuring and maximizing the quality of the activity, utility and integrity of information dated October 1, 2002.
We commend MSHA for having an earlier version of its 2001 risk assessment independently peer reviewed. Clearly, the Agency subscribes to the principle of independent peer review of its work.
All right then, what's the final risk assessment that appears in the 2001 regulation peer review? Of course, even with that peer review, we wonder if that process meets guidance in the current OMB proposal published in the Federal Register September 15, 2003 for how a peer review is to be done, namely, whether the peer review (1) has any financial interest in the matter at issue; (2) has, in recent years advocated a position on the specific matter at issue; (3) is currently receiving or seeking substantial funding from the Agency through a contractor research grant, whether directly or indirectly; or (4) has conducted multiple peer reviews for the same agency in recent years or has conducted a peer review for the same agency in the same matter in recent years.
NSSGA respectfully asks MSHA to provide this information during this rulemaking.
I would also like to state here that NSSGA supports the comments made throughout this lengthy rulemaking by Drs. Borak, Cohen and Valberg concerning MSHA's risk assessments as well as the comments of YMC Global.
Asides failing to peer review its 2001 risk assessment in support of this rule, we see no evidence that MSHA subjected to peer review, the seven
so-called Haney Industrial Hygiene Studies. The studies were completed during 2000 in response to concerns by Mr. Haney about interferences in MSHA's recommended DPM sampling method. NSSGA supports the numerous comments made about these reports that were submitted for the record by the MARG Coalition on July 31, 2000 and supports the motion made by the National Mining Association to have these documents stricken from the record.
Although numerous criticisms of these studies were mentioned by MARG, the most pertinent in the context of these oral remarks, the ones I'm making this morning is the following: the Haney studies and reports were conducted without an apparent protocol or independent peer review. They have not been published nor submitted for publication. The Haney reports lack the capacity for independent verification because the underlying data have not been released, missing data has not been accounted for and equipment procedures are neither available nor standardized.
According to MSHA, Mr. Haney's work established the submicronic impacter can eliminate inherent interferences from carbonaceous minerals and graphitic ores. MSHA gave Mr. Haney's research such weight that the use of the submicronic impacter was included in the 2001 rule. At the time the 2001 rule was promulgated NIOSH was in the midst of doing its own study of possible interferences with the 5040 analytical method for DBM, but MSHA brushed aside industry's plead to wait on the results of that study, saying the health risk to miners compelled it to take action to complete what by that time had become a nearly decade-long rulemaking.
Parenthetically, MSHA was quick to point out that NIOSH supported MSHA's rulemaking. That may well be, but nowhere is it clear NIOSH-supported setting mandatory exposure limits. In fact, NIOSH is charged with recommending exposure limits to regulatory agencies, but has pointedly failed to make any such recommendations regarding DPM.
OSHA, MSHA's sister agency in the Department of Labor, an agency with responsibility for tens of thousands of work sites where DPM is present, has done so either. But while basing a significant provision of the sampling portion of its 2001 rulemaking on a shaky foundation, the Agency stumbled yet again by requiring that the surrogate remain total carbon and not elemental carbon. Its reasoning for doing so was that MSHA "does not at this time know the ratio between the amount of elemental carbon and the amount of DPM. Accordingly, rather than deal with the uncertainties in all samples which this approach would present, MSHA is going to use a method that is sampling for both organic carbon and elemental carbon that properly provides accurate results."
MSHA took this action in the face of a clear recommendation from its own research agency, NIOSH, that elemental carbon, not total carbon be used as a surrogate for DPM in field measurements. NIOSH also took the opportunity to state that measuring for elemental carbon would also reduce sampling costs, an important consideration for operators, particularly small ones, another point that seems to have been lost on the Agency.
NIOSH submitted its comments on July 31, 2000, yet MSHA disregarded them in its final 2001 rule. The Agency was also aware of an occupational exposure limit based on elemental carbon promulgated in 1996 by the Federal Republic of Germany. By dismissing this expert advice, the Agency violated Section 101(a)(6)(A) of the Mine Act which states that "the Secretary in promulgating mandatory standards dealing with toxic materials or harmful physical agents under this subsection, shall set standards which most accurately assure on the basis of the best available evidence" -- that's my emphasis -- "that no miner will suffer material impairment of health or functional capacity."
Additionally, the provision states and I quote, "In addition to the attainment of the highest degree of health and safety protection to the miner, other considerations shall be the latest available scientific data in the field." Also my emphasis.
As we all know, under consideration in this rulemaking is changing the surrogate from total carbon to elemental carbon. We have heard no testimony from anyone during these proceedings objecting to this proposed change and for the record, NSSGA supports the use of elemental carbon as the surrogate as well.
We would add, also again parenthetically, that we do not believe Congress under the Mine Act gave MSHA a mandate to perform research studies as it has done during this rulemaking. We see that MSHA itself agrees. Why else would the Agency insert into the preamble of its 2001 final rule the following comment by individuals representing the United Mine Workers? "First of all, MSHA is not a research agency. It's a regulatory agency so that it would be inappropriate to initiate research. It was not arbitrariness or indifference on MSHA's part that it did not initiate research on coal miners, it was not within their mandate and it is inappropriate in any event."
The Agency's arbitrary and capricious behavior can also be seen in this cavalier dismissal of industry complaints at the time of the 2001 rule that the submicron impacter was not available in sufficient quantifies for sampling. Get the old Bureau of Mines, BOM specifications and then have a local machine shop use them to produce the impacter was MSHA's advice.
The Agency stated it is an omission that impacters were not commercially available. Even taking the Agency's outrageous advice might not have produced an acceptable impacter since MSHA comments that sapphire nozzles are more precise, yet also claims that results using either the BOM sampler or one commercially made would yield the same results. But it wasn't just the impacter that was not available, the field cassette wasn't either. According to NIOSH and industry sources, the cassettes were not available for field use before August 2002. If so, that would throw into question all of the results from the 31 mine study which was done the fall of 2001 and was used by MSHA as justification for its recommended sampling methodology, use of elemental carbon as a surrogate after the EC/TC ratio that forms the basis of the current rulemaking.
MSHA's arbitrary and capricious rush to rulemaking does not stop here. While commenting that it would accept any control or combination thereof, aside from worker rotation and initially personal protective equipment, to meet the PELs in the standard, Agency pronouncements repeatedly favor exhaust filtration devices.
But MSHA failed to mention that some platinum-based filters are capable of producing levels of nitrogen dioxide above MSHA's regulatory limit which is 5 parts per million as a ceiling vetting. The result was that some well-meaning operators, mine operators, following MSHA's advice, unwittingly exposed their miners to elevated levels of this air pollutant, forcing immediate evacuation of the affected area of the mine until levels were brought under control. After the horse was out of the barn, the Agency issued a program information bulletin on the problem on May 31, 2002. The literature will show that this problem was known for some time before MSHA publicly acknowledged it.
We previously mentioned in the estimator. MSHA's predicated its entire technical and economic feasibility analysis on the use of this computerized spreadsheet program for use with Microsoft XL software to help mine operators to determine which control or combination thereof would be most appropriate to reduce DPM levels to require concentrations. However, as comments submitted to MSHA by the diesel litigation group in a report dated May 21, 2002 reveal the estimator is seriously flawed, in part, because it assumes perfect air mixing and the existence of effective ventilation for dilution of exhaust particulate. Because the instrument is flawed, MSHA's feasibility conclusions must be considered invalid and therefore withdrawn.
In summary, MSHA has built a regulatory record on DPM based on nonpeer-reviewed research and analysis and disregarded its statutory requirements under the Mine Act, based on inherently flawed instruments and in a manner that has subjected miners to other health risks and operators to unnecessary costs, all apparently in a mad rush to get a rule out the door during a politically favorable regulatory climate. This behavior is more than irresponsible. It may constitute regulatory misfeasance.
The new Administration and MSHA can rightfully exclaim not guilty, but it will assume the sins of its predecessor if it allows rulemaking on the final PEL to move forward. We urge the Agency in the strongest possible terms to drop the final PEL and to do so in this rulemaking.
This section of my talk is called filters as a control operation and I have two pages left. So I know you can cut me off at any time.
MSHA's emphasis on filters is apparently based on its belief that this technology is the best and perhaps only cost-effective way to reach this disputed final PEL. Stone operators are particularly troubled by this recommendation and seek filtration as the choice of last resort. They hold this view for a number of reasons. Filters are costly and of questionable durability. Filtration systems present logistical problems, especially active systems, making them far less practical than passive systems. They may lead to stresses on engines, or as we have seen, substitution of another pollutant or pollutants in the air that miners breath for the one MSHA wants operators to control. A behavior change is required because most equipment operators resist active systems.
The reluctance of stone operators to believe filters are a viable control technology can be seen in comments NIOSH made to MSHA in a recent letter, June 25, 2003 was the date of it. "With regard to the availability of filters in the interim standard, the experience to date has shown that while diesel particulate filters, DPF systems, for retrofitting most existing diesel power-operated equipment in metal and non-metal mines are commercially available, the successful application of these systems is predicated on solving technical and operations issues associated with the circumstances unique to each mine.
Operators will need to make informative decisions regarding filter selection, retrofitting, engine and equipment deployment, operation and maintenance and specifically work through issues such as in-use efficiencies, secondary emissions, engine back thresher, DPF regeneration, DPF reliability and durability.
We would also add other circumstances left out of the recitation by NIOSH, practicality, operator acceptance and cost. We would also point out that since these systems are equipment-based, operators must make micro-based decisions applicable to each relevant piece of diesel equipment, as well as macro decisions that is mine-wide that NIOSH is talking about.
Here's what one stone operator had to say about the filters, "engine filters are too large of an expenditure to partake unless it is deemed necessary." Yearly maintenance is also real high for engine filters. Management will not consider engine filters until it is deemed as the last resort when all other controls have failed."
Based on the aforementioned issues an operator must go through when considering filters as a controlled technology, it's no wonder these devices are avoided because requirements to determine their mine worthiness are beyond the scope of most operators. Mines are set up to sell or and to make a profit doing so. They're not set up to perform many research projects to determine if filters are going to work on every piece of equipment MSHA believes might need them.
Clearly, an operator could hire a consultant to work through the myriad of details associated with determining the suitability of the filtration control device; this gentleman who I quoted a minute ago did. However, consultants cost money and MSHA has not included consultant costs in its economic analysis. This is yet another reason why MSHA's economic feasibility analysis should be voided.
Stone operators have been committed to meeting MSHA's unjustified interim PEL. Still, judging by the results of MSHA's recently completed baseline studies, a significant portion are having trouble doing so, 16.2 percent of the stone samples were out of compliance with the interim limit. Clearly, many more will be unable to comply with the final PEL.
While stone operators are drawing upon the entire panoply of recommended control measures to come into compliance, except for worker rotation and filtration, the most promise seems to come from ventilation upgrades. This may be due in part to the characteristically low ventilation rates in most underground stone mines, as well as the fact that the trona mines which are heavily ventilated because of their gassy nature, has successfully met both MSHA's interim and final PELs on the strength of ventilation alone.
A focus on ventilation is in direct contrast to recommendations from MSHA which tend to downplay the necessity of making major ventilation upgrades. We suspect MSHA's subordination of ventilation improvements is due to the recognition, its recognition that making such changes is generally very costly. As such, it would void the underestimates so characteristic of MSHA's economic feasibility analysis.
The example of one stone operator, Kerford Limestone, is a case in point. This operator decided that ventilation would its primary method of compliance. It did so after commissioning a ventilation and DPM study. The consultant was asked to determine control operations and costs for complying with the final PEL. The results of that effort produced an estimate of $348,450 for engine improvement and $1.15 million for improvements to the ventilation system. Additional costs were proposed for maintenance are estimated to range from $25,500 to $38,000 per year.
To date, the mine is focused on complying with the interim limit and in so doing has invested $975,000 since October 2001, primarily for ventilation improvements. However, the cost also includes consultant study costs, a new blasting rig and a new engine for bolting rig. The bulk of this expenditure, $500,000 was to drop a new ventilation shaft. This mine participated in the 31 Mine Study. In contrast to the cost that is spent to date, MSHA based on sampling results from the 31 Mine Study and applying its estimator, for first year costs for this mine to comply with the interim limit at $155,200. MSHA estimates for this mine alone are off by $1 million.
If you multiply that million by 96 other stone mines, you get $96 million and that comes very close to the $100 million cutoff for a significant regulatory activity.
Despite these costly changes, mine management believes you will need to make even further changes to comply with the interim limit. They are listed in this order of priority. Ventilation improvements, cab improvements, other engineering controls, other administrative controls, engine replacement and engine filters.
This operator has been forced to make these changes even though its highest recorded DPM value from personal exposure monitoring was 400 micrograms per cubic meter total carbon.
Well, we'll stop here, but let me say we're committed to listing some of these remarks more fully in our written comments and to offer additional comment at that time. Thank you very much for the opportunity to comment.
CHAIRMAN SMITH: Thank you, Jim. Are there questions of mr. Sharpe from the panel?
Bob Haney from MSHA's Technical Support Center. bob?
MR. HANEY: Jim, do you know if any of your member mines are currently using filters for the 400 level limit?
MR. SHARPE: To my knowledge, none are.
MR. ELLIS: Could you repeat the question for the record?
MR. SHARPE: The question was to my knowledge are any of the member mine underground dieselized stone mines using filtration to comply with the interim limit? And my answer was I don't know of any that are and don't believe that any are.
CHAIRMAN SMITH: Thank you very much. Appreciate it.
Our next speaker is Mike Wright.
MR. WRIGHT: Here's my formal statement if you would like it.
(Pause.)
I note these chairs still have price tags on them. I wonder if that's some --
CHAIRMAN SMITH: You can buy a few if you like.
MR. WRIGHT: Some subtle comment on economic feasibility.
My name is Mike Wright and I'm privileged to direct the Health Safety and Environment Department at the United Steelworkers of America, a labor union with approximately 600,000 members in the U.S. and Canada. They include the majority of organized metal and non-metal miners in North America. Of course, miners in the United States will be directly affected by this rulemaking, but Canadian miners will be affected as well since what MSHA does will be watched by Canadian regulators and employers and of course, miner workers. Obviously, we have a keen interest in this rule.
This rulemaking is based on a January 19, 2001 final rule for DPM in underground metal and non-metal mines, a challenge to that rule by several mine operators and trade associations with subsequent intervention by the USWA, our union, and a July 15, 2002 settlement agreement between the parties. In the settlement agreement, MSHA agreed to propose changes to certain provisions of the rule while other provisions went into effect. It is important to note that MSHA did not and could not agree to do more than propose changes to the existing rule and subject those changes to notice and comment rulemaking. MSHA did not and could not give up its statutory mandate to consider the evidence fairly and set standards which "most adequately assure on the basis of the best available evidence that no miner will suffer material impairment of health or functional capacity even if such miner has regular exposure to the hazards dealt with by such standard for the period of his working life."
The emphasis was mine. It was the same passage that Jim quoted earlier. I chose to emphasize a slightly different part of it.
MSHA is under no legal obligation to make any changes to the current standard and cannot make such changes unless they comport with the requirements of the Mine Act. Likewise, the USWA's participation in the settlement agreement does not imply unqualified support for every change MSHA has proposed. Some we do support, others we oppose. Still others, we would support only if modified or backed up with additional worker protections. We made this clear to MSHA and the industry litigants when we signed the settlement agreement and we repeat it now.
I will not comment today on the need for a DPM standard. The USWA believes that issue was fully settled in the previous rulemaking which resulted in the current standard. There is no evidence that weakens MSHA's conclusion, I' sorry, no new evidence that weakens MSHA's conclusion that DPM is a carcinogen which must be controlled at the lowest feasible level.
Let me now turn to the specifics of the MSHA proposal starting with section 57.5060(a). DPM is a mixture of many different individual chemicals. It is impossible to sample for all of them, so sampling concentrates on a single chemical or a well-defined chemical family that acts as a surrogate for DPM, in general. In this rulemaking, MSHA proposes to change the surrogate from total carbon to elemental carbon, primarily because sampling and analysis of elemental carbon is less subject to interference by carbon that may be tied up in substances like oiliness and cigarette smoke.
Since the atmosphere of a working mine will generally contain less elemental carbon than total carbon and will never contain more, a change in the surrogate necessitates a change in the level of that surrogate permitted in the air miners breathe. MSHA has chosen an interim level of elemental carbon equal to 308 micrograms per cubic meter, based on data showing this level to be most consistent with the total carbon level of 400 micrograms per cubic meter which is, of course, the limit in the current regulation. We agree with this change.
The change to EC in the new interim level of 308 are supported by the currently available evidence and well explained in the preamble. However, MSHA should not preclude a different finding with respect to the final limit. New evidence may show total carbon to be more representative than the actual risk to miners. Even if elemental carbon is retained as the surrogate for the final level, the conversion factor between total carbon and elemental carbon may be different at lower levels of total carbon.
MSHA also proposes to base compliance determinations on personal exposure rather than environmental concentrations. We agree that personal sampling gives a better representation of real exposure and we support the change. However, MSHA should define exactly what is meant by personal exposure. In particular, exposure could be defined as in most Department of Labor standards for air contaminants as and I'm quoting here, "the exposure that would occur if the employee were not using respiratory protective equipment." That's from the OSHA cadmium standard. Otherwise, OSHA will be embroiled in endless disputes over how much time every sample employee wore a respirator, the effective protection factor for that employee under those circumstances and the concentrations of DPM during that period.
Unfortunately, basing compliance determinations on personal sampling has one serious drawback. An operator can cheat by moving a miner being sampled to a lower exposure area. Therefore, the standard must authorize MSHA inspectors to insist that every sampled miner perform work that is representative of his or her normal routine. MSHA inspectors must also be empowered to backup personal sampling with area sampling where necessary to full characterize representative exposures.
In its August 14, 2003 Federal Register notice, MSHA discussed the use of an air factor based on the 95 percent confidence limit of the elemental carbon measurement. A citation would be issued only if MSHA was 95 percent confident that the exposure limit had been exceeded.
Some commenters see this standard primarily as a legal requirement with penalties for non-compliance. They argue that no penalty should be assessed unless MSHA is sure that the standard has been violated. Others see the standard primarily as a public health measure which at the very least should be triggered with a preponderance of the evidence, indicates that miners are at risk. In fact, the standard is both a legal requirement and a public health measure.
In the notice, MSHA states that the prevailing practice under other OSHA and MSHA standards has been to cite only when noncompliance is indicated at a high level of confidence, the legal approach.
However, many OSHA standards including the most recent also protect public health through the use of an "action level", typically half the exposure limit at which additional sampling an some controls kick in. The USWA recognizes the legal difficulty of citing for noncompliance where the Agency is not confident that noncompliance has occurred. But we suggest that MSHA consider the use of action levels in the rulemaking for the final DPM exposure limit and other air contaminants as a way to protect public health as well as the legal rights of employers.
Turning now to Section 57.5060(c). MSHA proposes to modify the requirements for special extensions of time granted to operators to come into compliance with the applicable exposure limits. Specifically, operators can seek extensions of time to comply with both the interim and final limits and MSHA could grant more than one extension. The length of the extension would be limited to one year. Finally, MSHA could grant an extension for economic, as well as technological reasons.
The USWA does not support these changes with respect to the interim standard. The current standard found the interim level to be feasible without the need for any special extensions and that is the legal status quo. In last year's settlement agreement, we agreed to a reopening of the record because the mine operators insisted that the new evidence would show that some mines might need the special extensions to come into compliance with the interim level. However, in the intervening 15 months, neither the industry nor NIOSH nor any other party has submitted any convincing evidence showing the need for the extraordinary relief from the interim limit which would be granted by a special extension. Indeed, the entire industry has already had a one-year de facto special extension by MSHA's decision, to which we agree, to delay the enforcement of the interim limit.
In short, the industry has not met its burden to show that MSHA's original decision with respect to special extensions should be abandoned. The evidence in this record simply does not contain sufficient grounds for changing this standard to allow special extensions for compliance with the interim level.
To be sure, deliveries of filters or other equipment necessary for compliance may sometimes be delayed due to factors beyond the mine operators' control, that problem is routine and it is routinely handled by MSHA in the course of its enforcement activities by giving sufficient time for abatement. There is no reason to overlay that process with this new regulatory device of special extensions.
We believe remaining issues regarding special extensions, their duration, renewability and whether economic feasibility should be considered should be left to the rulemaking on the final limit where we do support special exceptions. However, we are troubled by the discussion of economic infeasibility in the Federal Register's notice.
Economic factors are already a de facto part of feasibility determinations. Our union has represented workers handling plutonium, nerve gas, tetraethyl lead, nickel carbonyl, infectious disease agents and shock-sensitive explosives. We know it is possible to solve any industrial hygiene or safety problem with enough money. However, no one believes that a control is feasible, if it is so exotic or expensive that it would drive the industry out of business. That kind of feasibility determination is a required part of rulemaking. A standard must be economically feasible for the industry, taken as a whole.
But what should happen after a standard has been promulgated and a mine operator claims that a control is simply too expensive for his or her mine even though it is available and would be effective? We believe that MSHA's enforcement process already contains enough flexibility to deal with that situation and there is no need to modify the standard's provision regarding the criterion for special extensions.
One particular problem with the proposed change is that it does not contain any definition of economic feasibility. The Federal Register notice contains an example where the cost of retrofitting controls on to a piece of equipment would exceed the value of the equipment. We agree that replacing the equipment is a better alternative than retrofitting the controls, but only if the new equipment is ordered immediately. Economically infeasible is not the same thing as expensive or even economically inefficient. Those are three different concepts.
In general, controls should be considered economically feasible if their implementation would not bankrupt the company or force the mine to close.
In addition, the proposal does not indicate how MSHA would enforce the new language. Would MSHA demand a complete financial accounting? Would that accounting cover just the mine or the entire company? Would the miners' representative have access to those records as well? Would individual miners?
USWA would object strenuously to any provision that did not allow the miner's representative access to all the records used by MSHA to determine the feasibility and controls of a particular mine. In short, MSHA should withdraw this aspect of its proposal until such time as the Agency can fully consider its ramifications.
Turning now to Section 57.5060(d), this section currently specifies the areas under which miners can work in concentrations of DPM above the concentration limit. Much of it becomes moot if the concentration limit is changed to an exposure limit. MSHA proposes to delete this section as written and substitute a requirement to use the standard hierarchy of controls.
USWA recognizes that there may be areas or activities where the PEL cannot be met. For the most part, these should be areas that miners enter for short periods under unusual circumstances. An example would be fixing a conveyor in an incline that is also used as an air return, or driving an effective soup tram to an area where it can be repaired. In these cases, engineering controls and work practices might not be feasible and the standard should allow the use of respirators. However, routine use of respirators for any normal production job or activity should be allowed only under a special extension and only for the final exposure limit or where controls are in the process of being installed.
Under the hierarchy of controls, MSHA considers the control to be effective and therefore required if it can reduce exposure by 25 percent. We agree in part with this cut off, but a control should also be considered effective if it can bring the operator into compliance no matter what the percent reduction in exposure.
If, for example, the exposure on a particular job is 340 micrograms per cubic meter, and a proposed control can reduce that exposure to 290 micrograms per cubic meter, that control should be required even though it only achieves a 14 percent reduction.
The current standard bars the use of respirators as methods of compliance, in general, although they are permitted for some activities under the current provisions of 57.5060(d).
One of the defects of the current standard is that it does not contain requirements for an effective respirator program. MSHA has begun to correct that in the proposed standard, but the requirements are grossly inadequate and threatened both the lives and the livelihoods of miners. In particular, there is no explicit requirement for medical evaluations for miners required to wear respirators.
As MSHA's Federal Register notice itself points out, quoting the preamble to OSHA's respirator standard, "specific medical conditions can compromise an employee's ability to tolerate the physiological burdens imposed by respirator use, thereby placing the employee at increased risk of illness, injury and even death." A mine operator who puts a miner in a respirator without a medical evaluation is risking that miner's life. A decision by MSHA to authorize that would border on criminal negligence. MSHA standards are supposed to save lives, not threaten them.
Transfer provisions go hand in hand with medical evaluations for workers unable to wear respirators. Such miners must be placed in areas that do not require respirators with no loss in earnings. It is fundamentally unfair for a miner to lose his or her job or suffer a loss of income simply because his or her employer cannot meet the obligations of the standard.
In addition, miners fearing the loss of a job, if they flunk the respirator evaluation, may not answer the questions truthfully or may resist the evaluation all together. Transfer rights with full earnings protection are required for sound medical reasons. They are also required for legal reasons. In the Federal Register notice, MSHA references section 101(a)(7) of the Mine Act which states, in pertinent part, and I'm quoting, "In addition, where appropriate, any such mandatory standard shall prescribe the type and frequency of medical examinations or other tests which shall be made available by the operator at his cost to miners exposed to such hazards in order to most effectively determine whether the health of the miners is adversely affected by such exposure. Where appropriate, the mandatory standard shall provide that where a determination is made that a miner may suffer material impairment of health or functional capacity by reason of exposure to hazard covered by such mandatory standard. That miner shall be removed from such exposure and reassigned. Any miner transferred as a result of such exposure shall continue to receive compensation for such work at no less than the regular rate of pay from miners in the classification such miner held immediately prior to this transfer."
In the preamble to the proposed standard, MSHA describes this section of the Mine Act as establishing the statutory authority for the Agency to promulgate medical evaluation and transfer provisions. However, it does much more than simply establish the statutory authority. It establishes a requirement that MSHA include such provisions when an appropriate medical protocol is available and where transfers will protect miners' health. Ones those findings are made and they are surely true for respirator users, the Agency has no discretion.
We do not believe such provisions will be expensive. Miners with respiratory or cardiovascular conditions who are unable to tolerate the increased breathing resistance causes by negative pressure respirators may be able to wear positive pressure respirators without any problem. The OSHA lead standard requires medical evaluations for respirator users. Likewise, it requires transfers from regulated area for a variety of conditions. Many workers have been transferred for high lead blood levels or medical conditions like kidney disease, but every few have ever been transferred because of their inability to wear a negative or positive pressure respirator.
Respirators are hard to tolerate under the best of conditions. It is virtually impossible to wear one effectively for a full work shift. Therefore, any standards should mandate break time where a miner can remove his or her respirator in clean air. The clean air can be provided by outfitting an enclosed booth with filtered air or by providing fresh air to an area close to the miner's work station. At a minimum, a 10-minute break should be allowed every two hours.
MSHA proposes to retain the ban on employee rotation for the purpose of compliance and we agree. DPM is a carcinogen. Rotation may reduce the risk to an individual miner, but it will not necessarily reduce the overall risk to the population of miners. In fact, depending on the shape of the dose response curve, it may actually increase the population risk, resulting in more cancer overall.
Section 57.5062. The current standard requires mine operators to establish a DPM control plan. MSHA proposes to retain this requirement. We strongly agree. Planning is essential for any complex activity. Mine operators have spent a great deal of time and money in this rulemaking, arguing that the control of DPM is exceedingly complex. It is hard to understand how they can simultaneously argue that control plans are unnecessary.
Turning to Table 57.5075(A). The table of recording requirements does not seem to include the records of exposure of miners required by Section 57.5071(A). These records are useful to mine operators and the miners' representatives and MSHA and they should be retained for a minimum of five years. We assume that was either an oversight or something we missed in some other part of the standard.
Finally, let me note that some members of the public health community may submit comments or briefs between now and October 14th. While those comments may not agree with ours in every respect, we believe they should be given the same weight as the comments of any other party. Miners' health is after all a subset of public health. We welcome the participation of any person or group that wants to see a strong, effective DPM regulation. That concludes my oral testimony that's written. I just want to add one thing parenthetically that is I want to thank MSHA for all of the work you have put into this regulation, both in the previous Administration and the current Administration. I know that a lot of midnight oil has been burned around here and a lot more will be burned. Some day miners will be protected against this problem and it will be due, in large measure, to your efforts and we applaud you for that.
I'm ready to answer questions.
CHAIRMAN SMITH: Thank you, Mike. Questions?
No. Thank you very much. We appreciate it.
MR. WRIGHT: Thank you.
CHAIRMAN SMITH: I think we're going to take about a 10-minute break. We'll resume at 20 after.
MR. WRIGHT: I have more copies of my comments if anyone wants them, I'll leave them on the table.
CHAIRMAN SMITH: Thank you.
(Whereupon, the foregoing matter went off
the record at 10:09 a.m. and went back on
the record at 10:25 a.m.)
CHAIRMAN SMITH: If we could get started, please. Our next speaker is Pete Galvin, and there he is. Good morning, Pete.
MR. GALVIN: Good morning, Becki. Thank you. You can hear okay? Yes, no?
CHAIRMAN SMITH: If you would spell your name for the record, please.
MR. GALVIN: Deborah, can you hear me now? Can you hear me now?
MS. GREEN: It's just not real clear.
MR. GALVIN: Okay. The name for the record is Galvin, G-A-L-V-I-N. I want to begin by thanking the Secretary for granting me permission to make a presentation at these hearings. As a former employee of the Department of Labor, such permission is required in order to participate in DOL hearings, and I am, of course, bound not to reveal deliberative information which I am aware.
I would also like to note that according to DOL Ethics Council, no such permission is required for me to submit written comments nor to participate in litigation in connection with this or other rulemakings.
I understand that a copy of the communications between myself and the Department on this matter are being made a part of the record, and if there are any questions about that, I will submit a copy along with my final written statement.
For those here whom I haven't met, I should explain that I retired from the Department this May after 30 years. I served as Co-Counsel for Administrative Law in the Office of the Solicitor downtown and provided expert advice to all of the agencies of the Department on the rulemaking process. In addition, I spent a few years on detailed MSHA and was extensively involved in the development of the 2001 rule on DPM, serving as a liaison between the Committee and the Assistant Secretary.
While with MSHA, I was constantly amazed by the technical expertise and practical approach of the Agency staff as well as their professionalism and integrity. I was proud, really proud, to have the opportunity to work with you all.
My comments at this time are on behalf of myself only and have been prepared without compensation of any sort. This could change as the process continues, and consultations are ongoing among the steel workers, mine workers, health experts, administrative law experts and others interested both in this rulemaking and in MSHA's implementation of the rule. Given my background, I will be raising factual and legal questions about some of the proposals which others are bound by prior commitment to support. I would remind the Agency and the mining community that by law rulemaking is not a negotiation; rather, the law requires certain findings be made.
Today, all I'm going to do is just summarize a few points I'll be making in extensive detail in my written comments. First, health risks. I am really disappointed to continue to see some mine operators continuing to question the significance of the risk posed by DPM to the nation's underground miners -- risks shared by supervisors and operators underground as well.
The Agency had its risk assessment independently peer reviewed. The findings by EPA since that time have confirmed the seriousness of risk at the much lower levels characteristic of outdoor environmental exposure. Unfortunately, however, some mine operators may be getting incorrect information about the science from those with ulterior motives. MSHA owes it to the mining community to put any such doubts to rest, and I would urge the NMA to join in that effort.
Two, feasibility. I am pleased MSHA has decided to reopen the question of feasibility because it's my contention that based on the updated record it's now feasibility for the mine industry to more rapidly implement the final limit than was initially contemplated by the Agency and ultimately to lower the final limit.
In this regard, I will be pointing out that some key assumptions used in the regulatory -- I say regulatory flexibility analysis but it's a regulatory economic analysis for the final rule have turned out to be significant overestimates and need to be adjusted.
Three, proposed changes affecting implementation of the final rule. Although the Agency has indicated that the changes to the proposed rule have to do with the interim limit, I've counted at least seven changes which actually alter how the final rule would be limited -- I'm sorry, how the final limit would be implemented. A simple example is the proposed amendment to the allow operators extensions of time to meet the final limit due to economic considerations. Such changes cannot be made at this time because they require a determination that, contrary to the Agency's previous finding, it's not feasible for the industry as a whole to meet the final limit as set forth in the rule.
Four, extensions of time to comply with the interim limit. The current rule contains no such extensions. After delaying enforcement of the interim limit for a year and providing extensive technical assistance to any of the 200 or so covered operators who requested it, there's nothing in the record to support the need for such extensions. In my written comments, I will also be separately addressing the question as to whether any extension is warranted for the final limit, even for technological reasons given the record at this point in time.
Fifth, operator exceptions from the interim limit. Current rule permits the interim and final limit to be exceeded only for short-term activities in defined areas of the mine. In such cases, respiratory protection has to be used to protect the miners. The proposed rule would expand the limited scope exception into a broad new approach similar to that under the noise rule, drawing operators, MSHA and the Review Commission into findings about individual operator technological and economic feasibility. My comments will challenge the justification for such a fundamental change to the rule and point to a number of problems it will create. My comments will also address the need for shortcomings in the current proposed rule concerning the requirements for the use of PPE in the narrow circumstances where it is appropriate.
Six, type of limit. Concentration limit is inherently more protective than a PEL of equivalent value. A miner moves throughout the day and there are some areas which will have limited DPM exposure. The miners' exposure in every area of the mine is limited as required under a concentration limit. His or her personal exposure for the day is going to be less than it would be if no such limit were in place. Accordingly, the Agency cannot possibly find that an interim PEL of 500 micrograms of DPM per cubic meter is as protective as an interim concentration limit of 500 micrograms of DPM per cubic meter. The Agency made the findings necessary to adopt a concentration limit based on an assessment of risk, and it cannot adopt a PEL unless it can figure out a way to convert the concentration limit to a PEL that offers an equivalent amount of protection.
Type of sampling. Area and occupational sampling have an appropriate role to play in determining compliance with a concentration limit, and the record provides examples of such situations. They can also provide an important check to be sure personal sampling is not being manipulated. Accordingly, the Agency has no basis for asserting that eliminating such sampling approaches will not diminish miner protection.
Area and occupational sampling are a well recognized MSHA practice and have been in use for over 30 years. Such an approach to sampling will be particularly important if the compliance surrogate remains total carbon for the final rule, something the Agency is not yet prepared to determine. Sound administrative practices can ensure that inspectors select the proper sampling method, minimizing disputes that might otherwise arise in this regard, because operators in this sector are not yet fully familiar with the practice.
Surrogate. I think everybody acknowledges that it would be great to use elemental carbon for the surrogate. Nobody wants to have dispute over interferences, clouding individual enforcement decisions. Unfortunately, however, it isn't that easy, and it's going to be harder, if not impossible, for the final limit when the effects of filtration have to be taken into account. My comments will go into this in some detail.
In addition, I'm going to be raising significant questions about the conclusions in the 31 mine study that's not possible using the total carbon method to deal with interferences from oil mist and smoking. For example, I was particularly surprised to see that there was no new evidence since the completion of the 2001 rule about the effect of distance on smoking interferences, yet the Agency suddenly reversed its conclusion. I find it hard to believe the Agency's technical experts who supposedly authored this report came to such conclusions, and I would like the Agency to clarify that point for the record.
In addition, I intend to remind the Agency that there's an alternative to measuring the ambient DPM, mainly a solution adopted by the coal sector. I think it's important as the Agency reconsiders the final limit to be wary of those who suggest that measurement complications provide a legal excuse for doing nothing.
Ninth, operator DPM control plans and verification sampling. I'm really at a loss to explain how operators were able to maintain control plans during the year of pre-enforcement compliance assistance but cannot do so in the future even if they're cited. The Agency has not pointed to any evidence that the current requirements are not feasible for the mining industry as a whole. I'll also be making comments on other points and in particular I'll be supporting the concern expressed by the Center for Progressive Regulation about the highly questionable legality of the Agency's extended suspension of the provisions of the rule that should already be in effect -- suspensions that continue to this day. That comment, by the way, for those who haven't seen it, is now available online. Last I looked yesterday it's under the ANPRM heading. The Agency should have long since sought a legal opinion from the Department of Justice.
This concludes my remarks. I hope you will find my comments useful when they are submitted next week and will carefully consider the supportive material to which -- that I'll be providing with them. Thank you very much.
CHAIRMAN SMITH: Thank you, Pete. Questions of Mr. Galvin? Thank you.
MR. GALVIN: Am I entitled to a Jolly Rancher?
CHAIRMAN SMITH: Yes, you are. Our next speaker is Bruce Watzman. Bruce, you might want to clip it further down. It seems to do a little better.
MR. WATZMAN: On my tie.
CHAIRMAN SMITH: A little less sensitive there.
MR. WATZMAN: Better? Thank you. I'm Bruce Watzman, that's W-A-T-Z-M-A-N, of the National Mining Association. On behalf of the NMA members, I appreciate the opportunity to present comments on MSHA proposed rule to the control diesel particulate matter exposure of underground metal and non-metal miners. We'll be filing written comments before the close of the comment period, but having attended two of the three public hearings that have been conducted and having reviewed the transcript of the hearing conducted in St. Louis, there are some issues that I wanted to discuss personally.
As you're aware, as you referenced earlier, and as explained in great detail in the preamble, the proposed rule is an outgrowth of a partial settlement agreement entered into by the parties, including NMA, to a challenge of the January 2001 final rule. The July 15, 2002 settlement agreement, which was negotiated by me, representing industry, Mike Wright, representing Intervenor, United Steelworkers of America, and Defendant MSHA, set forth a blueprint for the Agency to follow in promulgating this proposed rule.
To the degree that the proposed rule follows the settlement agreement, we support its finalization. More specifically, we support the decision as reflected in 57.5060(a) to use elemental carbon rather than total carbon as the surrogate for determining compliance with the standard. This decision resulted from an extensive study that identified potential confounders in the mining environment that would have raised serious questions as to the Agency's non-compliance/compliance determinations.
I must note that this decision came about because of the industry's insistence first identified by the Nevada Mining Association and the MARG Diesel Coalition that samples analyzed on the basis of total carbon were artificially elevated due to sources of carbon not attributable to the combustion of diesel fuel. Regrettably, some in the Agency resisted recognizing this fact, and I'm fearful as to the outcome had their views prevailed. More importantly, however, the fundamental question remains: Why was this fact not identified prior to adopting TC as the preferred sampling surrogate? Why did the enforcement agency not realize this, and what's steps have been taken to ensure that the sampling and analytic system developed for this rule will provide accurate, precise and reliable results, especially at levels below the 400 microgram total carbon or the 308 equivalent elemental carbon level?
As part of the sampling process, the rule proposes the compliance determinations be based solely upon personal exposures rather than area or occupational exposure determinations, as was contained in the final rule. We support this change.
The second element of the sampling process that is carried forth in this proposal and was a part of the final rule is the use of single samples for compliance determinations. Our decision to agree to the use of single sample for compliance determinations as part of the overall settlement agreement should in no way be viewed as an admission on our part that such determinations accurately reflect the environment to which miners are exposed. Significant variability exists when sampling underground, and sampling averaging has long been recognized as the preferred method for conducting compliance sampling.
I would draw your attention again to the testimony of George Love who presented an analysis of the results of sampling conducted my MSHA and Carmuse at their Maysville operation. We'll be commenting on this in greater detail by the end of the comment period. Suffice it to say that we're extremely concerned that the sensitivity of the sampling and analytic process are not sufficient to meet NIOSH's 95 percent accuracy test, and this further renders the use of single sample compliance determinations of questionable validity. We believe that unless MSHA meets its burden of proving that the sampling and analysis system provides accurate results, the rule does not comply with MSHA's duty to adopt only technologically feasible standards.
We now understand that the cassettes used in the conduct of both of the 31 mine study and MSHA's compliance assistance visits were not the cassettes that are being manufactured by SKC today. We are unaware of any analysis that has been conducted by the Agency or any outside source to confirm that these new cassettes meet NIOSH's accuracy test. We have three sets of punch-to-punch data: The MARG database taken during the NIOSH study, the 31 mine study samples and the punch-to-punch data provided by MSHA and obtained by MSHA during their compliance assistance visits. All of these show significant variability punch to punch across the universe of the database. We'll be providing more analysis of this in our written comments.
Again, I would reiterate no analysis of punch-to-punch data has been conducted, to the best of our knowledge, for the new redesigned SKC filter or an analysis of whether the two-punch average is enough to correct for the variability. If MSHA has conducted such an analysis, we would ask that this be provided to us as soon as possible so that we can review it and comment on it prior to the end of the comment period which is quickly coming upon us.
We support the expansion of the special extension provisions as contained in 57.5060(c) so that they're applicable to both the interim and final limit. Moreover, we believe the decision to consider economic and technologic constraints is proper. We believe that consideration should be given for extensions for periods of greater than one year. This will reduce the paperwork burdens imposed in industry, and provisions could be included to ensure that new technology will be used once proven, even during the duration of an extension.
A central element of the extension process will be the determination by the Agency of whether or not an operator has exhausted all feasible engineering and administrative controls. As the rule is written, this is the paramount threshold test that must be met before an extension determination is considered. We're concerned with the Agency's decision that a 25 percent or greater reduction in DPM exposure from a control or combination of controls is significant and thereby effective. We know of no scientific basis nor has the Agency provided any scientific basis for this 25 percent determination. Rather, the Agency refers to Commission case law developed under litigation of the occupational noise standard.
I would note that even the noise standard, DB exchange rate, a 3 DB engineering control results in a 33 percent reduction in exposure in dose. Yet in this instance the Agency has arbitrarily, in our estimation, come up with a 25 percent threshold test of whether or not a control is feasible.
We recently became aware that the Agency is considering, when analyzing the feasibility of a control for compliance with the noise standard, a new and quite troubling test. Historically, MSHA has followed the decision of the Review Commission, and as such considered an engineering control to be feasible if it achieved a 3 DBA or greater noise reduction. We now understand that the threshold test will apply to an engineering control in combination with administrative controls. One can readily see the impact such a policy will have in this proceeding. If applied to DPM controls, a control with minimal exposure reduction value could be deemed feasible when combined with production cutbacks and administrative control. This has the potential to eliminate the entire concept of mandating only feasible controls and hinder the application of the special extension provisions. Let me give you one example which some may say is not reasonable.
MSHA's expressed policy might deem an engineering control feasible if it had a cost of $1 million and resulted in a reduction of exposure to DPM of three percent if it combined with an administrative control, shift reduction or production cutback that reduces exposure by 22 percent. The combined reduction of 25 percent would meet the Agency's stated threshold test and the three percent effective DPM engineering control would be deemed feasible.
As one of the participants that negotiated the settlement agreement, I'm concerned that this policy, if adopted, will undermine the intent and the spirit of the settlement agreement. At not time was this discussed nor was I led to believe that the feasibility test would be anything more than a facial determination that a particular control or in the case of engineering controls combination of controls meets or does not meet the threshold test. I believe this concept, if finalized and carried forward in the administration of the DPM rule, will seriously undermine the good faith discussions that gave rise to the settlement agreement, and I would encourage you to take a fresh look at this issue. It's not inconceivable that further discussions will be necessary before the DPM issue is finalized, and I'm concerned that such discussions may be tainted by questions of openness and truthfulness.
There are several instances in the preamble that accompanies the rule where the Agency poses specific questions and asks for specific comment. We'll be commenting on these in our written submission. Two, however, warrant comment at this time. First, the Agency seeks comment on whether the DPM rule should include no respiratory protection mandates or plan provisions. Irrespective of the worthiness of such a revision, we believe it is wrong to create within the DPM standard a respiratory protection requirement that treats exposure to DPM differently than other gaseous substances requiring the use of such protective means. If the Agency believes that the existing standard is inadequate, then modification of that section is where the change should be considered.
The second is the question of the revised DPM control plan provisions contained in 57.5062. As some are aware, this is a matter that was discussed extensively during the discussions that gave rise to the settlement agreement. While we had, I believe, frank and open discussions regarding the need and use of such a plan, we were not able to reach agreement on a plan scope, duration or enforceability. Because of this, it was suggested that this be a subject for discussion during this rulemaking. While the plan provisions contained in the proposed rule are a dramatic improvement over the plan provisions of the January 2001 final rule, we still have significant questions regarding the necessity for such a plan, its operational aspects and its benefits.
The rule is performance based, and as such we question the necessity for a plan. Compliance determinations will be made based upon MSHA sampling, and operators will be required to initiate abatement actions where sample results exceed applicable levels. Given this regulatory system, we question how MSHA justifies a plan requirement that seems to only impose paperwork burdens and provides the basis for citations that are not related to compliance with the DPM limit. Either compliance is accomplished or it is not, and where compliance cannot be achieved through either engineering or administrative means, the operator will utilize respiratory protection and hopefully rotation of personnel if the final rule permits the use of this recognized administrative control.
This time tested use of the hierarchy of controls is more than sufficient to ensure that operators are employing all means to maintain concentrations of DPM at or below allowable levels. Imposition of the control plan requirements will do nothing more than present further opportunity for confrontation and citation. The paperwork requirements of such a plan can become unnecessarily burdensome and the perceived benefits of such a program must be weighed against the real costs that such a plan will impose.
The last item that I want to discuss today involves the question of feasibility of the 2006 160 microgram standard. Given our expanded knowledge today of the availability of, reliability of and the utility of the existing suite of engineering controls to achieve compliance with the reduced DPM standard, we do not believe that the 160 limit is feasible, and we urge that it be deleted in this rulemaking. While we recognize the exposure to DPM at certain levels can present some health consequences that must be prevented, we believe the Agency's risk assessment has failed to quantify a dose relationship for DPM exposure that supports the 160 limit or any limit below the interim level. Given the lack of a risk justification for the 160 level, combined with the lack of feasible controls, the final limit does not meet MSHA's statutory requirement and must be deleted.
There is no doubt that industry-wide exposures under the negotiated DPM standard will for some be significantly lower than exposures which existed prior to the final rule. For others, their exposures, because of mine-specific conditions, are already below the 400 microgram interim level. To the degree that mines can employ technology to reduce exposures below 400, we encourage them to do so. However, the Agency has not justified the need for nor demonstrated the means to achieve compliance with the 2006 160 microgram level.
Regrettably, our continued attempts to validate the technologic feasibility of compliance with the 160 level can best be characterized as the more we know, the less we know. Repeated attempts to validate technology in in-mine, non-laboratory tests have been thwarted by equipment failures. The testimony presented at the Salt Lake hearing by Stillwater Mining and Kennecott Greens Creek were but the latest examples of potential solutions gone astray. Despite repeated conversations, despite the submission of testimony and written documentation of industry experts and despite the work undertaken by a diesel partnership comprised of labor, industry and government, the Agency has not yet accepted the fact that the representations made by the prior administration as to the technologic feasibility of the final standard are without merit. In the simplest of terms, all of us were sold a bill of goods which has proven to be flawed.
As MSHA knows well, mining and equipment plans require massive investments and are drawn years in advance. The industry cannot tolerate the uncertainty of an unachievable standard only two years in the future. On Page 48694 of the proposal, the Agency notes, and I quote, "MSHA concludes that a permissible exposure level of 308 micrograms of EC per cubic meter is technologically feasible for the metal and non-metal underground mining industry," close quote. Of note is the Agency's silence as to whether a lower permissible exposure limit is technologically feasible. Based on the results of the tests at Newmont, Greens Creek, Carmuse and Stillwater, the feasibility of single sample compliance determinations with the 308 EC standard is still in doubt and will require extensions, but there is no doubt that the 160 limit cannot be achieved.
This completes my statement. As noted earlier, we'll be submitting written comments prior to the close of the comment period, and I'd be happy to respond to any questions you might have.
CHAIRMAN SMITH: Thank you, Bruce. Questions? Jon?
MR. KOGUT: You indicated that you thought that the existing risk assessment did present some justification for the interim limit but not for the final limit. Could you clarify the distinction that you're drawing?
MR. WATZMAN: Jon, I would say that there are comments already in the record by Dr. Howard Cohen and Jonathan Borak. There will be additional comments put into the record. My belief is that the Agency looked at the -- to some degree looked at this two-prong standard, one, to address what the Agency believes is the cancer risk of exposure to diesel particulate matter and, secondarily, the non-cancer health consequences of exposure to DPM. We disagree with the Agency as to whether or not DPM presents a cancer risk based upon its exposure, and based upon that, we don't believe that the Agency has justified the lower level of 160. We do accept the fact that there are some health consequences, some of a transient nature, if you will, from exposure to DPM, and as such we accepted the interim level of 400 micrograms, recognizing that there are some health risks. But we disagree as to whether or not DPM presents a cancer risk.
MR. KOGUT: That wasn't exactly my question. My question was is there something in the risk assessment that distinguishes between a health risk above the interim limit as compared to the final limit that would lead you to say that the risk assessment shows that there's a health risk above the interim limit but not above the final limit -- not in the area between the final limit and the interim limit?
MR. WATZMAN: Not wanting to get into a debate on the merits of the risk assessment, I would say that the industry view all along has been that the risk assessment is flawed and that in and of itself did not adequately justify either level because there is no dose response relationship quantified in the risk assessment. However, having said that, as part of a settlement, we accepted the interim level, but we think the risk assessment is flawed, and there has been testimony, Jim Sharp talked about it earlier, the comments of Dr. Cohen and Dr. Borack, the IMC comments that Jim referenced, that the position of the industry all along has been that the risk assessment is flawed, fundamentally flawed.
CHAIRMAN SMITH: Thank you, Bruce.
MR. WATZMAN: Thank you.
CHAIRMAN SMITH: Mr. Watzman is the last of our speakers who have signed up. Are others in the audience interested in speaking? Mr. Wright?
MR. WRIGHT: I just have a question for MSHA.
CHAIRMAN SMITH: Okay.
MR. WRIGHT: We've been talking a lot about risk assessment this morning. EPA has done a great deal of work on the risk assessment to the general public from diesel. I wonder if that information and their risk estimation and their unit risk estimate is in this record.
CHAIRMAN SMITH: Jon?
MR. KOGUT: The health assessment document, as it was published in May of 2003, is not in the record, because it came out after the -- actually, I'm not sure. It may have been put in the record in connection with this rulemaking.
MS. GUNN: Yes, the NPRM from EPA has been put in the record. EPA's proposed rule is in our record.
MR. KOGUT: Yes. So that May 2003 health assessment document is in the record for this rulemaking.
MR. WRIGHT: It will be in the record as part of it. Okay. Thank you.
CHAIRMAN SMITH: Others interested in speaking? If not, we're going to officially close the record on this public hearing. Thank you very much for coming.
(Whereupon, at 10:59 a.m., the MSHA Public Hearing was concluded.)
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